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Rock and Hard Place

SSM Roundel

Steamship Mutual

Published: October 01, 2015


This article discusses the relevance of negligence by the Master in safe berth / port and dangerous cargo cases. It is often said that the captain bears ultimate responsibility for the safety of his ship.  But how does this proposition fit with the scheme of most charterparties, in which legal responsibility for the safety of the berth, or the cargo, is allocated to the charterer? 


  • The factual / expert issue about whether the Master was negligent can end up dominating proceedings, and arguments on this issue tend to take on an importance which outstrips its true role in the case.
  • This article will explore the different ways in which allegations of negligence against the Master fall to be characterised, and the issues of causation which can arise as a result, in the two different (but related) contexts of safe berth / port claims, and dangerous cargo cases, under English law.

Unsafe ports / berths

  • The classic definition of a “safe port” is that given by Lord Justice Sellers in The Eastern City [1958] 2 Lloyd’s Rep 127, at 131:

    …a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship”.
  • The Ocean Victory [2015] EWCA Civ 16 confirmed that this is the correct test to apply.
  • Since an unsafe port or berth is one where the vessel will be “exposed to danger which cannot be avoided by good navigation and seamanship”, it is commonplace for respondent charterers to argue that the cause of a particular incident was the lack of good navigation and seamanship by the Master. If the explanation for the cause of the incident is the Master’s negligent navigation then – so the argument runs – it cannot have been caused by the alleged unsafety of the port or berth.
  • In practice, that will be often be true. But, as a matter of analysis, the question of whether or not a particular port or berth was safe, and the question of whether or not the Master was negligent, are distinct from one another.  This issue was considered in The Mary Lou [1981] 2 Lloyd’s Rep 272.
  • In addition to the straightforward cases in which the cause of an incident is the unsafety of the port or berth, or the negligent navigation of the Master, the learned Judge identified two further possibilities: first, where neither unsafety nor poor navigation was the cause, and secondly where there was both unsafety and poor navigation.
  • The first of these possibilities is illustrated by those authorities that deal with “abnormal occurrences” – most recently, The Ocean Victory. The authorities make clear that, where damage results from an “abnormal occurrence” unrelated to the prevailing characteristics of the port or berth, there is no breach of the safe port/berth warranty.  Examples include the mishandling of other vessels or freak weather events.  In such circumstances, it will not assist owners to establish that the Master navigated the vessel with reasonable skill and care.
  • The second possibility is where there is both unsafety and negligent navigation. In practice, of course, if the tribunal has formed the view that the port or berth was unsafe, it can be an uphill struggle for charterers to establish that the Master was negligent.  As a rule, arbitration tribunals have great sympathy for Masters who are caught on the “horns of a dilemma” or make a decision in the “agony of the moment”. To establish negligence it is not enough to establish an error or mistake by the Master: it must be shown that no reasonably competent Master would have acted in the way that he did in those circumstances.  But suppose that charterers can prove negligence by the Master: what then?
  • This point arose squarely for decision in The Polyglory [1977] 2 Lloyd’s Rep 353. The vessel’s starboard anchor had dragged and damaged an underwater pipeline and owners were seeking to recover from charterers their agreed liability to the owners of the pipeline.  Charterers’ case was that the cause of the damage was the negligence of the Master and/or the crew and/or the pilot, and the arbitrator agreed that there was “bad seamanship” amounting to “negligence on the part of the pilot” in failing to engage the engines with sufficient power to avoid the casualty.  The arbitrator nonetheless held that the unsafety of the port was the effective cause of the casualty.  That finding was upheld by the Judge. 
  • One needs to distinguish between allegations of negligence which are really alternatives to a finding that the port was unsafe (e.g. the buoy did not properly mark the obstacle vs. the Master manoeuvred too close to the buoy) and those which are not. In one case in which the author was involved, it was alleged that the Master should have realised earlier that the berth to which the vessel had been sent was unsafe.  To succeed with such an allegation, it would have been necessary for charterers to establish that the effective cause of the loss was the Master’s negligence in failing to identify the danger and that this obliterated the causative effect of the original breach. 
  • That represents a very high hurdle to clear. Indeed, it may be that nothing far short of the Master deliberately or recklessly running a risk would suffice.

Dangerous cargoes

  • In the context of a claim arising out of a dangerous cargo, the usual position is that owners will be in the position of the claimant, and charterers or shippers (together referred to here as “cargo interests”) in the position of the respondent. In those circumstances, the cargo interests sometimes advance the argument that, if the cargo was unsafe, the Master was at fault in loading it when he knew or ought to have known of the danger, and that they should not be liable for any loss or damage resulting therefrom.
  • It is important to distinguish cases of alleged negligence from those where the cargo interests have actually given notice to the Master and he has proceeded to load the cargo regardless. Such notice will discharge the cargo interests’ obligation under their common law implied duty not to ship dangerous goods without prior notice and operate as a defence to any claim made under Article IV.6 of the Hague or Hague-Visby Rules.  However, even a notice of this kind may not afford a defence to a claim based on the express terms of the charterparty or contract of carriage.
  • What, then, about constructive knowledge: knowledge that the Master ought to have (for example, by reference to circulars published by P&I clubs etc. as to the dangers of particular types of cargo)? Here, some care needs to be taken, because it will depend on the nature of the claim advanced by owners as to whether that constructive knowledge operates as a defence to liability, or whether it might found an argument that the “chain of causation” was broken.  As to this:
    • Where the claim is made under the common law implied duty not to ship dangerous goods without prior notice, the fact that the goods are such that Master might “on inspection be reasonably expected to know to be of a dangerous nature” will usually operate as a defence to the claim.
    • Where the claim is made under an express contractual obligation not to load dangerous cargoes, this constructive knowledge will not operate as a defence to the claim. It may be argued that the Master’s negligence broke the “chain of causation” such that that negligence, and not the loading of the dangerous cargo itself, was the effective cause of the loss.  As discussed above, the negligence would need to be such as to “obliterate” the causative potency of the original breach. 
    • Where the claim is made under Article IV.6 of the Hague or Hague-Visby Rules, authorities suggest that the constructive knowledge of the Master will operate as a defence.
  • There is thus an important distinction to be drawn between a claim on the basis of the breach of an express term and a claim pursuant to the common law implied duty or under Article IV.6. That is perhaps unsurprising.  In the former case, the parties have agreed that charterers are going to take the risk of the cargo which is shipped proving unsafe.  Having done so, if there is a breach, it is going to be very difficult for charterers to escape liability by blaming the Master for negligently failing to save them from the consequences.  By contrast, the implied obligation imposed by common law, and (probably) the Hague and Hague-Visby Rules, strikes a balance in the absence of express agreement. 
  • In the case of an express term, the charterer has promised not to ship a dangerous cargo, just as he has promised in the “unsafe port” case not to send the vessel to a dangerous port. In neither case are the parties envisaging that charterers will deliberately send the ship to an unsafe port or tender an unsafe cargo.  It is not necessary to show that the charterer was negligent or should have been aware of the danger.  The promise is concerned with risk allocation, not moral culpability. 
  • Unusually, the situation may arise where the loading of a dangerous cargo gives rise to a claim by the cargo interests. A recent example in which the author was instructed involved a bulk cargo which was found part way through loading to be too wet to be safely carried by the vessel.  It had to be dried out in the holds, causing significant delay and expense.  Charterers complained that the Master should have realised that the cargo was too wet before any was loaded and advanced a claim against owners for the costs incurred as a result.  Could such a claim ever succeed?
  • In that case, the charterparty contained the usual express exclusion of dangerous cargoes and it followed that tender of the cargo in question for loading involved a breach by charterers. Accordingly, it seemed that the claim would fail for circuity unless it could be proved that the Master’s negligence was so causatively potent as to negate the effect of the prior breach; in other words, unless it broke the chain of causation.  As before, this must mean something more remarkable than a mere error of judgement.  Hypothetical examples discussed included accepting a cargo of ticking bombs or fizzing sticks of dynamite (in the manner of Wiley Coyote being outwitted by the Road Runner).  Whether failing to spot a wet cargo was ever likely to suffice was perhaps doubtful, but the claim settled, so that question was not definitively answered.
  • Absent such an express term, the situation might be different. There might, in principle, be scope for a claim (by charterers) against owners for negligence by the Master in the performance of charterer’s orders.  Depending on the facts, it might also be possible to allege breach of terms concerning compliance with ISM, or to allege unseaworthiness. 


  • What all of this perhaps illustrates is that, in shipping cases, where a loss ultimately falls is more often a matter of contractual risk allocation than a question of moral fault. The negligent Master may be morally culpable in the event of an accident which he could have prevented.  He and his shipowner may face civil or even criminal action if third parties are harmed or their property damaged.  By contrast, charterers may have been another innocent victim of these events, unaware that the port was unsafe or the cargo dangerous.  Nevertheless, as between owners and charterers, it is suggested that it will usually take something more than mere negligence to enable the latter to escape from the consequences of his breach, let alone to pass those consequences to owners. 
  • What is certain is that determining whether the Master was negligent may be only one aspect of the dispute and should not be permitted to dominate the whole arbitration, as sometimes begins to happen in practice.

We are grateful to Sean O’Sullivan QC, Barrister at 4 Pump Court, for this article.

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